SZLZZ v Minister for Immigration
[2008] FMCA 612
•30 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLZZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 612 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China due in part to economic detriment resulting from the loss of a transport licence – Tribunal accepting key factual claims but finding that the economic detriment did not amount to serious harm – whether there was evidence supporting the finding considered – whether the Tribunal acted reasonably or applied the correct test considered – whether the Tribunal overlooked an integer of the applicant’s claims considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.91R |
| Applicant: | SZLZZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 465 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 13 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Dr J Azzi, appearing pro bono publico |
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 465 of 2008
| SZLZZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 29 January 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China. He had made claims of persecution based upon the Chinese one child policy and about his association with Falun Gong. Background facts relating to the applicant’s protection visa claims and the Tribunal decision on them are set out below. That statement has been derived from submissions filed on behalf of the Minister on 8 May 2008. Apart from providing background information, those submissions are now superseded.
The applicant is a national of the Peoples' Republic of China (PRC), who arrived in Australia on 15 May 2007, having been granted a visitor visa[1]. On 14 June 2007, the applicant applied for a protection visa[2]. On 9 August 2007, the delegate refused to grant the applicant a protection visa[3]. On 5 September 2007, the applicant applied to the Tribunal for review of the delegate's decision[4].
[1] Relevant Documents ("RD") 29-30
[2] RD 1
[3] RD 34-45
[4] RD 46-50
On 15 November 2007 the applicant attended a Tribunal hearing to give oral evidence and present arguments in support of his claims[5]. On 29 January 2008, the Tribunal handed down its decision, which affirmed the decision of the delegate not to grant the applicant a protection visa[6].
Applicant's claims
[5] RD 55, 68-75
[6] RD 63-80
The applicant claimed to have three children, two of whom were born outside of the PRC family planning laws. The applicant's wife was required to undergo a tubal ligation, and a fine was imposed due to their breach of the policy. The applicant claimed that threats were made to destroy his house if the fine was not paid. The applicant borrowed money to pay the fine of 30,000RMB.
The applicant owned a petrol station in Jiangxu province. The local authorities put pressure on him to pay them a percentage interest in his business. They began to act violently towards him and he eventually closed the business in 1997.
One year later the applicant bought a truck and began a transport business. The applicant became friendly with a client named Mr Chen, for whom the applicant delivered Falun Gong materials. In 2001, the applicant was arrested by the police and detained for two weeks for reason of being in possession of the Falun Gong material. The applicant's truck was confiscated by police and later returned. His transport licence was suspended.
In 2001 the applicant started work as a security guard in Fuqing city. He told the Tribunal that he continued that work for several years and in fact was still employed as a security guard at the time that he left the PRC for Australia.
When asked by the Tribunal about his practice of Falun Gong, the applicant claimed that he looked at the Falun Gong text, Zhuan Falun, when he had time, he rarely had time to practice, he sometimes went to watch other Falun Gong practitioners in the park, but was mostly occupied with his business. When asked whether he practices Falun Gong in Australia, the applicant said that he was told that someone was practising in a park in Parramatta, he went to look for them, but did not find them[7].
[7] RD 73.2
The Tribunal put to the applicant that he had not described any instances of harm from 2002 to 2007. The applicant said there was no serious harm in that time and that his troubles were mainly financial.
Tribunal decision
The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason. The Tribunal accepted that the applicant had two children born in contravention of the PRC family planning laws, and that the applicant paid a penalty of 30,000RMB. However, the Tribunal found that there was no evidence that the PRC family planning laws were applied in the applicant's case in a discriminatory fashion, or, with reference to independent country information, that the social compensation fee imposed on the applicant was excessive.
The Tribunal found that the applicant and his family had not suffered serious harm in China for reason of a failure to comply with the family planning regulations, and noted that the applicant did not claim to fear serious harm in the future for that reason[8].
[8] RD 76-77
The Tribunal accepted that the applicant closed his petrol station in 1997, due to interference and harassment from local officials in Jiangxu. However the Tribunal found that the essential and significant motivation for the harm inflicted upon the applicant by the local authorities was greed and not related to any Convention reason. The Tribunal noted that the applicant had left Jiangxu. The Tribunal found remote the chance that the applicant would suffer harm from the local authorities in Jiangxu for any Convention reason should the applicant return to China in the foreseeable future[9].
[9] RD 77
The Tribunal accepted the applicant's claim that he carried cargo of Falun Gong materials for Mr Chen, and that he was intercepted by police, detained and questioned. The Tribunal accepted that the applicant's vehicle was confiscated for a time but later returned to him, and that his transport licence was suspended. However, the Tribunal found:
a)although the detention in 2001 amounted to serious harm, the applicant suffered no further adverse consequences as a result of the incident after 2001;
b)the chance that the applicant would be further detained in relation to the incident in 2001 was remote; and
c)there was no evidence before the Tribunal that the applicant's reduced financial circumstances as a result of the suspension of his transport licence resulted in serious harm for the purpose of s.91R(1)[10].
[10] RD 78
On the basis of the applicant's “vague evidence” before the Tribunal regarding the applicant's understanding of Falun Gong, the Tribunal found that the applicant was not a Falun Gong practitioner in China or in Australia.
The application and evidence
These proceedings began with a show cause application filed on 27 February 2008. The applicant now relies upon an amended application filed on 8 May 2008. The Minister had been given prior notice of that application and did not object to the late amendment of the grounds of review. The grounds in the amended application are:
1.The Tribunal committed jurisdictional error in making a critical finding “that there is no evidence before the Tribunal that the applicant’s reduced financial circumstances as a result of the suspension of his transport license has resulted in serious harm for the purposes of s.91R” [RD 78-79]
Particulars
a. The Tribunal accepted the applicant was detained for two weeks and subsequently lost his transport licence.
b. The Tribunal further accepted the applicant was unable to continue his transportation business without the appropriate licence. [RD 78.9]
c. The Tribunal accepted the applicant remained unemployed for one year in 2001 after he lost his transport licence but that he maintained employment as a security guard from 2002 until 2007 which was not as lucrative as the transport business. [RD 78.8]
d. The applicant gave evidence that he lost his transport business after the police discovered he was delivering half truckload of Falun Gong books and materials. [RD 68, 72]
e. The applicant said he lost most of the money he had invested in his truck. [RD 72.6]
f. The applicant told the tribunal that as a security guard he was earning “only about 800 or 900 RMB per month and [that] his wife could not work”. [RD 72.8]
g. The applicant said that he was supporting his family of four and his ailing mother “single-handledly”. [RD 72]
h. The applicant further said that his twin daughters faced dropping out of school because it was difficult for him to pay the tuition fees”. [RD 72.6]
i. The Tribunal however found that ‘according to his evidence [the applicant] supports his family and meets the costs of supporting his youngest children’s continued education”. [RD 78.10]
2. The Tribunal committed jurisdictional error in making a critical finding about the ability of the applicant to meet his youngest children’s continued education in circumstances where there was no evidence to support that finding such that the Tribunal applied the incorrect test of persecution.
Particulars
a. The applicant repeats particulars to Ground 1 above.
b. The finding about the ability to support his family and the continued education of his daughters was critical to the Tribunal’s assessment whether the applicant faced serious harm as a result of the suspension of his transport licence.
3. The Tribunal failed to act reasonably in finding there is no evidence before the Tribunal that the applicant’s reduced financial circumstances as a result of the suspension of his transport licence has resulted in serious harm for the purposes of s.91R.
Particulars
a. The applicant repeats the particulars to Ground 1.
4.The Tribunal committed jurisdictional error in circumstances where it failed to consider an integer of the applicant’s claim such that it could not properly consider whether the applicant had well-founded fear of persecution in the event he returned to China and was unable to re-commence his transport business.
Particulars
a. “Asked by the Tribunal what he fears in China” he said that mainly he is unable to continue his transport business without the appropriate licence.
b. The applicant repeats particulars to Grounds 1, 2 and 3.
I have before me as evidence the book of relevant documents filed on 22 April 2008. I also have before me as evidence the affidavit of Tamara Jayne Boaden filed on 5 May 2008, to which is annexed a transcript of the hearing conducted by the Tribunal.
Submissions
As counsel for the applicant notes, the first three grounds (and in my view also the fourth ground) raised in the amended application are inter-related. The grounds all attack the Tribunal’s finding that there is a remote chance that the applicant will face serious harm in the foreseeable future because at the time he left China he was supporting his family and meeting the costs of his children’s continuing education. The applicant contends that there was evidence before the Tribunal that his financial circumstances had been severely affected by the loss of his transport licence and that he was, at the time he left China, unable to support his family. The applicant contends that financial detriment can constitute serious harm and that the Tribunal erred in finding that there was no evidence that the applicant faced serious harm because of his reduced circumstances. The applicant also contends that the Tribunal erred in finding that he was meeting the costs of supporting his youngest children’s continued education. The applicant contends that there is no reasonable basis on which the Tribunal could draw such an inference or make such a finding.
The Minister makes the following submissions in relation to the amended application:
Grounds 1, 2 and 3: No Evidence
The Tribunal found, at CB78:
“However, as noted the Tribunal heard that the applicant has had regular employment as a security guard since 2002. The Tribunal is mindful that this work is not as lucrative as the applicant’s business may have been however, according to his evidence he supports his family and meets the costs of supporting his youngest children’s continued education.”
In order for the applicant to establish that there is a legal error in connection with this finding he must show that there was no basis whatsoever for the inference drawn by the Tribunal: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason J, Brennan J agreeing at 365, Toohey and Gaudron JJ agreeing at 387.
While it may be that the applicant gave evidence that all his children were facing dropping out of school (T24) his evidence also showed that in spite of the difficulties his two children (his two younger daughters) were living at school and that he paid their tuition fees and covered their living expenses: T24.6. At the time of the hearing, his girls were still in school: T10.4. The fact that the applicant’s daughters remained in school over the last 6 years supports an inference, that in spite of the financial difficulties experienced by the applicant, he was nevertheless able to meet the costs of supporting his youngest children’s continued education as found by the Tribunal. Similarly, in spite of the difficulties, that evidence supported the proposition that the applicant supported his family.
For these reasons the first three grounds must be rejected.
The applicant also suggests in his written submissions that the Tribunal failed to consider the particular social group of “persons unable to reapply for a transport licence and to recommence transport business by reason of using the business to carry Falun Gong material” (see submissions par.38). There are two answers to this submission: first, there was no evidence whatsoever to suggest that there was any such particular social group. Secondly, the social group necessarily defined by the harm claimed to have been feared by the applicant and for that reason cannot be a particular social group within the meaning of the Convention: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 263 per McHugh J.
Ground 4: Loss of opportunity to compete on an equal basis
The Tribunal accepted that the applicant may not be able to regain his licence because of the events in 2001. It found that the applicant was not of any interest to the authorities and because of that, … would not be detained and interrogated as he had been in 2001. However, it did consider the consequences of his inability to regain his licence. Those consequences were the reduced financial circumstances of the applicant and his family since 2001. It considered these and found that it did not constitute serious harm within the meaning of the Convention. In that way, the Tribunal properly understood and assessed the claims that arose in the material.
Reasoning
Counsel for the applicant asserted during the course of oral argument that the applicant had never claimed to be a Falun Gong practitioner. The protection visa claims were in that regard ambiguous. The applicant based his claims upon his association with a Falun Gong practitioner who introduced him to the Falun Gong exercises and gave him the book Zhuan Falun. On that basis, in my view, it was necessary for the Tribunal to consider whether the applicant was a Falun Gong practitioner. The Tribunal found that he was not.
The applicant did not assert that he suffered harm as a Falun Gong practitioner but rather that he suffered harm because of his association with a practitioner and his action in delivering a cargo of Falun Gong materials for that person. The Tribunal accepted the applicant’s account of being intercepted by the police and of having his transport licence suspended. The Tribunal accepted that the applicant was therefore unable to continue in his transport business and that he remained unemployed for a year. The applicant had then obtained employment as a security guard. The applicant had claimed that because of the loss of his transport licence, his financial circumstances were reduced and that this made life very difficult for him in China. Counsel for the applicant chose to characterise this claim as a particular social group claim but, however it might be characterised, the Tribunal considered the claim. The Tribunal dealt with the claim in the following way[11]:
Given that the Tribunal has found that the applicant is not a Falun Gong practitioner and was not a Falun Gong practitioner in China it concludes that the chance is remote that he will be targeted for harm by the authorities in China for that reason. The difficulties he encountered in China in 2001 because of his association with Mr Chen who is a known practitioner are long passed. On his evidence he has not had any contact with Mr Chen since that time. The applicant has maintained employment as a security guard from 2002 until 2007 when he left China. From the time he was released following his detention in Minhou in 2001 the applicant has not been questioned further or heard anything further about the matter. He agreed with the Tribunal that he had been granted a passport without difficulty in February 2007. In the Tribunal’s view this supports its finding that the local authorities had no further interest in him. Asked by the Tribunal what he fears in China he said that mainly he is unable to continue his transport business and he had invested a lot of money in that. The Tribunal accepts that the applicant is unable to continue his business without the appropriate licence. However as noted the Tribunal heard that the applicant has had regular employment as a security guard since 2002. The Tribunal is mindful that this work is not as lucrative as the applicant’s business may have been. However according to his evidence he supports his family and meets the costs of supporting his youngest children’s continued education. There is no evidence before the Tribunal that the applicant’s reduced financial circumstances as a result of the suspension of his transport licence has resulted in serious harm for the purposes of s 91R(1).
The Tribunal went on to consider whether the applicant faced a risk of physical harm and its finding on that issue is not contested.
[11] RD 78-79
I accept that economic harm may be serious harm for the purposes of the Refugees Convention and the Migration Act 1958 (Cth). Section 91R(2)(d) provides, as an example of an instance of serious harm, “significant economic hardship that threatens the person’s capacity to subsist”. Counsel for the applicant was somewhat confused during oral argument as to the extent of financial detriment suffered by the applicant in China. He submitted that the applicant’s income had been reduced by 90 per cent but, upon examination of the evidence during argument, it was apparent that the only quantified reduction in income on the applicant’s evidence followed the closure of a petrol station business operated by the applicant in 1997. That closure was not Convention related[12]. While the applicant contended, and the Tribunal accepted, that the loss of his transport licence adversely affected him financially, that adverse impact was not quantified in his evidence[13]. The Tribunal accepted that his employment as a security guard was not as lucrative as his transport business may have been. However, the applicant’s challenge to the decision is directed to the Tribunal findings that on his own evidence he supports his family and meets the cost of supporting his youngest children’s continued education and that there was no evidence before the Tribunal that his reduced financial circumstances as a result of the suspension of the transport licence resulted in serious harm.
[12] RD 77
[13] he did state his income as a security guard.
Counsel for the Minister pointed to page 10 of the transcript where the applicant gave evidence that his two youngest children were still attending school in year 9. On page 24 of the transcript the applicant gave evidence that his children “faced dropping out of school” and that he was supporting his family single handedly. He gave evidence that he faced difficulties paying their tuition fees. However, the applicant did not give evidence that the tuition fees were not paid and his evidence was that the children remained in school. On page 29 of the transcript the applicant gave evidence that his family depended on his earnings and that when his mother is ill she also takes money from him. On page 30 of the transcript the applicant confirmed that the harm he feared in China was the difficulty of his financial circumstances.
On page 33 of the transcript the following exchange occurred between the presiding member and the applicant:
…
M: Now, I understand that you say that you’ve lost this money that you put into the petrol station, but that’s now quite a number of years ago, and I understand that you’re saying that you lost a lot of money and you never got that money back. But you closed the petrol station in 1997, now 10 years ago and from what you’ve told me, you had a job as a security guard from 2002 to 2007, and you earned an income but you told me it wasn’t enough for your needs and to support your family and your mother.
A: Yes.
M:Now from what you have [t]old me now, you did not describe any instances of serious harm [from] 2001 to 2007. Is that correct?
A: Not serious ones.
M: So what harm did you suffer [from] 2001 and 2007 exactly? Do you have any response? What harm exactly did you suffer between 2001 and 2007?
A: I couldn’t continue with my business and couldn’t get my delivery licence if I bought a vehicle.
M: Did you have money to buy a vehicle?
A: If I don’t have I could borrow.
M: Any other harm, any other harm in that time?
A: No, mainly a financial problem.
M: I can understand that, I can understand how difficult the circumstances may have been financially, and I understand that they are extremely difficult circumstances when there is little money and children and parents to support. But as I said to you at the beginning of the hearing, the Tribunal has to satisfy itself of the likelihood of persecution for one of the reasons in the convention, and any circumstances relating to diminished financial circumstances or financial losses cannot be said to come within any of those reasons in the convention on the face of it.
…
The following conclusions can be drawn from the applicant’s evidence given at the hearing. The first is that his essential complaint was his reduced financial circumstances. The second is that his evidence was that because of those reduced financial circumstances he struggled to support his family. Nevertheless, the applicant’s youngest children had remained in school and although the threat of inability to pay school fees loomed, he had not failed to pay the fees. He conceded that the harm he thus suffered from 2002 to 2007 was not serious and that he retained a capacity to borrow money. While the final statement by the presiding member quoted above might suggest a misunderstanding in the mind of the presiding member as to whether financial detriment can constitute serious harm, the Tribunal’s reasons establish that the Tribunal recognised the hypothetical possibility that reduced financial circumstances might constitute serious harm, but was not satisfied that they did in the case of the applicant. The Tribunal’s conclusions that, according to the applicant’s evidence, he supports his family and meets the costs of his youngest children’s continued education and that his reduced financial circumstances, as a result of the suspension of his transport licence, did not result in serious harm, were open to the Tribunal on the material before it.
I therefore reject the first three grounds in the amended application.
In my view, ground 4 in the amended application adds nothing. It was not part of the applicant’s claims that the loss of his licence had any significance apart from the economic impact on him. That claim was considered.
I otherwise agree with the Minister’s submissions.
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
The Minister should receive his costs in accordance with the Federal Magistrates Court scale in the sum of $5,000.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of DRIVER FM
Associate:
Date: 30 May 2008
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